[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317 It is provided by the statute of this State, that all lawful acts done by administrators who may be removed or superseded, shall remain valid, and shall not be impeached by any subsequent revocation of the authority of such administrator. (2 R.S., 79 m., § 47.) The plaintiff's claim stands, therefore, as if Jacob Hartman had continued to be administrator of Sanford Hartman, and the action had been brought against him as administrator.
The contract for the gravestones was proved to have been made. They were of a character suitable to the rank and station in life of the deceased, and to the circumstances of his estate. The defendant, as administrator, had assets in his hands applicable to their payment. Can the action in such case be maintained against the estate, as a matter of course, or is the remedy against the administrator personally? The administrator contracted for the purchase and delivery of the monument. He had a right to contract for stones suitable to the rank in life of the deceased, and to the estate left by him. He had no right to contract for stones of an unsuitable character. Thus, for the grave of a man leaving an estate of $10,000, or $20,000, monuments of which the expense should be $100 or $200, would very likely be deemed suitable and reasonable. If the same individual should leave an estate of but $500, and a family of small children, an expenditure of several hundred dollars for that purpose, probably would not be deemed suitable or reasonable. (Hancock v. Podmore, 1 B. Ad., 260; 20 Eng. C.L.R.) Whether the particular article is suitable and reasonable, or otherwise, is a question which the seller is not called upon to decide. That question is not left to his decision. It belongs to the administrator. He decides *Page 319 it at his peril, to be allowed or disallowed, in the final settlement of his accounts with the surrogate. The seller accepts the judgment and decision of the administrator, acts upon his direction, and makes and delivers the stones or the monument upon his direction and upon his agreement. It is, therefore, most reasonable and proper, that the administrator should be liable himself to the seller, although the estate may not ultimately be liable to him, or to any one else, for the article furnished.
Again, it is to be considered, that the administrator is not the agent of the testator, or of the estate, and therefore allowed to contract in its behalf. We are apt to look upon an administrator as holding a like position to that held by a railroad manager, or a bank president. The latter officer orders and receives at the bank a set of ledgers, with the name of the bank entered in the same. A railroad manager, orders and receives a quantity of rails, which are delivered and laid down upon the track of his company. In each of these cases, it would be quite proper for the jury to find that the purchase was made for the corporation, and not by the officer individually. Not so, however, with the administrator. He has the title to the personal estate. He has no principal behind him for whom he can contract as agent. This is the policy of the law. The estate in the personalty is given, by the law, directly to the administrator. For the purpose of use and sale the title vests in him, and he is held responsible as owner. (1 Wms. Exrs., 530, 539, 546.) As owner, he must account to the persons ultimately entitled to distribution; and as owner, he sells, disposes and contracts, as his judgment dictates. These considerations fix the liability for the debt in question, upon the administrators personally, and not upon the estate. So are the authorities. In Myer v. Cole (12 John. R., 349), the declaration contained three counts. The first for goods sold by the plaintiff's testator to the defendant's testatrix, in their lifetime respectively. The second was for work and labor and the promise, laid as in the first count. The third stated, that the defendants, *Page 320 as executors aforesaid, were indebted to the plaintiff's testator, in his lifetime, for work and labor at the funeral of the testatrix; and being so indebted, the defendants, as executors as aforesaid, undertook and promised to pay the testator in his lifetime. To this declaration there was a demurrer, and judgment was rendered for the defendants. The court say: "The declaration is clearly bad. The cause of action, stated in the last count, arose after the death of the testatrix, and could not be joined with a cause of action arising in her lifetime. It would require different judgments." In Demott v.Field's, administrator (7 Cowen R., 58), the declaration contained four counts; the first two in assumpsit on promises of the intestate; the last two on promises of the defendant as administrator, to pay for funeral expenses of the intestate. The cause was referred; a general report was made in favor of the plaintiff without distinguishing upon which set of counts, whether that upon promises of the intestate or of the defendants. A motion being made in arrest of judgment, the court say, "the case of Meyer v. Cole is in point for the motion. The different set of counts, two being on promises of the intestate, and two on those of the defendants, for a consideration arising after the death of the intestate, require different judgments, the first de bonis intestatoris, the last de bonis propriis. And though the estate of the intestate in the defendants' hands, would be liable over, to the satisfaction of the claim for funeral expenses, that does not alter the form of the proceedings. The defendant would be liable upon the promise charged upon him, whether he has property of the intestate to answer it or not." The judgment was arrested. In Gillet vHutchinson's adm's (24 Wend. R., 184), the plaintiff declared on a promissory note, made by Dyget to the order of the intestate, and by him indorsed in his lifetime, averring demand and notice of non-payment. The second count was like the first, omitting the averment of notice. The third was for money lent by the plaintiff to the defendants as administrators. The fourth for money paid to, and for the use of the defendants as administrator. The fifth *Page 321 for money had and received by the defendant as administrators, to and for the use of the plaintiff. The sixth, for that the defendants, as administrators, accounted with the defendants for divers sums due, and owing from the defendants, as administrators as aforesaid. To this complaint there was a demurrer and a joinder. By the court, BRONSON, J., "Independent of minor objections, there is a fatal misjoinder of counts. The two first counts are upon promises made by the intestate in his lifetime, though the right of action did not accrue until after his death. On these counts the judgment would be de bonis intestatoris. Although a promise by the administrator is alleged, the counts show that the original obligation was contracted by the intestate. (Carter v. Phelps, 8 J.R., 440.) The four remaining counts are on promises made by the administrators, and relate wholly to transactions after the death of the intestate. On these counts the judgment would be de bonis propriis. (Rose v. Bouler, 1 H. Bl., 108; Brigden v. Parkes, 2 B. P., 424; Powell v. Graham, 7 Taunt., 580; Jennings v.Newman, 4 T.R., 347; 2 Saunders, 117 e, note; Meyer v.Cole, 12 J.R., 349; De mott v. Field, 7 Cow., 58.) The count upon the account stated might have been joined with the two first counts, if the accounting had been of moneys, due from the intestate in his lifetime, but it is of moneys due from the administrators. (Reynolds v. Reynolds, 3 Wend., 244.) The case of Powell v. Graham (7 Taunt., 580), so far as it relates to the insimul computassent count, is not law in this State, if it is in England." Judgment was ordered for the defendants.
In the case of Reynolds v. Reynolds (3 Wend., 244) above cited, the rule is thus laid down by SAVAGE, Ch. J.: "The only question, therefore, is whether the last count charges a personal liability, and whether a recovery upon it requires a judgment in his representative or individual capacity. The count appears to be taken from 2 Ch. Pl., 61-2, and states that the defendant, as administrator as aforesaid, accounted with the plaintiff concerning divers sums of money, due and owing from the defendant, as administrator as aforesaid, and that *Page 322 after such accounting the defendant, as such administrator as aforesaid, was found in arrears, and as administrator as aforesaid promised to pay. Had the count stated the accounting to be of and concerning divers sums of money due and owing from theintestate in his lifetime to the plaintiff, it would have fallen precisely within the case of Secor v. Atchinson (1 H. Bl., 102), in which such a count was held to be properly joined with other counts stating promises by the intestate. The distinction is between causes of action existing in the lifetime and those arising after the death of the testator or intestate. In the former cases, the judgment should be against the goods of the deceased; in the latter, against the goods of the representative." The learned judge proceeds to discuss further the cases in this State and in the English courts.
The cases of Chouteau v. Suydam (21 N.Y.R., 180), andNoyes v. Blakeman (2 Seld., 578), do not present the precise questions before us, although in them are discussed principles of the same general character. It can hardly be said that they impair the force of the cases cited, as none of them are considered by the learned judge who writes the opinion inChouteau v. Suydam; and the case of Noyes v. Blakeman was quite different in all its aspects. No other cases have been decided in the courts of this State that bear upon this point, so far as my examination has extended. The following principles are settled by these authorities:
1. That for all causes of action arising upon a contract made by the testator in his lifetime, an action can be sustained against the executor as such, and the judgment would be de bonisintestatoris.
2. That in all causes of action, where the same arises upon a contract made after the death of the testator, the claim is against the executor, personally, not against the estate, and the judgment must be de bonis propriis.
3. That these different causes of action cannot be united in the same complaint.
The English authorities upon this question are not so clear or so consistent with each other as those of this State. *Page 323
In respect to the non-liability of the estate, for contracts made by the executor after the death of his testator, the learned Judge WILLIAMS, in his work on executors, gives the rule substantially as I have deduced it from our authorities. He says: "It seems to have been once considered, that wherever an action was brought against an executor, on promises laid to have been made after the death of the testator, he was chargeable in his own right, not in his representative capacity." (2 Wms. Exrs., 1507, citing Cro. Eliz., 91; Cowp. 289, 4 T.R., 348.) He adds that the modern authorities have established that in several instances, the executor may be sued as executor on a promise made by him as executor, and that a declaration founded on such promise will charge the defendant no further than a declaration on a promise of the testator. He then cites Dowse v. Cox (6 B. C., 255), where Biddle, who had submitted to arbitration died before award made (it having been agreed that death should not abate the reference), the arbitrator awarded that the executor should pay £ 225 out of the estate of Biddle; and that being so liable, the defendant, as executor, promised to pay. The court held that the judgment must be de bonis testatoris. The action and the judgment being upon a cause arising in the testator's lifetime, the action could not be defeated by the defendant's personal promise to pay. The judgment was right.
He then cites Powell v. Graham (7 Taunt., 581), which was also a case where the defendant as executor, had promised personally, but when the services had all been rendered to the testator in his lifetime. The judgment was properly de bonistestatoris. To this case the author appends the remark, that it makes no difference whether the account be averred to have been stated of money due from the testator to the plaintiff, or of money due from the defendant as executor. To sustain this statement, the case of Powell v. Graham, supra, is cited. This case does not justify the remark, but is an authority to the contrary. It is, however, sustained by Ashley v. Ashley (7 B. C., 444), which is cited. This case is in hostility *Page 324 to the authorities of this State before cited, and to Rose v.Bouler (1 H. Bl., 108); Jennings v. Newman (4 T.R., 347);Brigden v. Parkes (2 B. P., 426); and to 2 Saunders, 117a, a note to Coryton v. Lithye, where the authorities are collected. The statement, I think, cannot be sustained.
He further says, that "it seems" that a count charging that the defendant as executor, was indebted to the plaintiff for so much money paid to him as executor, and as executor promised to pay, charges the defendant in his representative character. In its broad terms, this proposition is in hostility to the cases, but in the instance put by the author it is sound. Thus, two persons are jointly bound as sureties; one dies, and the survivor is obliged to pay the whole debt. In such case, if the deceased had been living, the survivor might have sued him for contribution in an action for money paid. The contract was made by the testator himself. The action is upon his contract, and upon principle the judgment should be de bonis testatoris.
The author immediately adds (p. 1509): But a count alleging that the defendant, as executor, was indebted for so much money lent to him as executor, and that as executor he promised to pay, charges him personally, and the only possible judgment is debonis propriis. And so it is, he says, of a count which charges that the defendant, as executor, was indebted for money had and received, as executor, to the use of the plaintiff, and as executor promised to pay, the judgment must be de bonispropriis; and so of a count for use and occupation and for goods sold and delivered to the defendant, as executor, after the testator's death. (1510.)
In all these cases, the law holds the transaction necessarily to be that of the executor personally, and that the averment of a promise as executor is a nudum pactum. No promise, as executor, can be made, except upon a transaction having an origin before the death of the testator.
The English cases have generally held to these rules, though not with entire consistency. I refer to the most important of them, without comment. (Corner v. Shew, 3 *Page 325 M. W., 350; the same, 4 id., 162, n.; Ashley v. Ashley, 7 B. C., 444; 14 Eng. C.L., 77; 1 Ch. Pl., 205; Rogers v.Price, 3 Y. J., 28; Tugwell v. Heyman, 3 Camp., 298.)
It is certainly the duty of the executor to pay the funeral expenses of the deceased from his estate, and it has been well held that suitable gravestones are a part of such expenses. (2 Wms. Ex., 871 and note; 2 Redf. on Wills, 224.) The expenses do and should fall upon the estate and not upon the executor. But it does not follow, as a logical sequence, that an action at law can be maintained against the estate to recover the amount. I have endeavored already to show why the action should not be sustained against the executor as such, and why it may be sustained against him personally. It ought to be added, that in case of the fraud or insolvency of the executor, an equitable cause of action would probably be thereby created against the estate, which could be enforced in behalf of the creditor, and which would enable him to maintain a claim against the estate directly.
The judgment of the General Term should be reversed, and the order of the Special Term affirmed with costs.